At the time of the offenses for which defendant was convicted, G and
mother lived in a trailer park in Sweet Home. G was three years old. G's great-grandmother lived in a trailer a few spaces away. Defendant, who lived in Lafayette, is
great-grandmother's son and G's great-uncle.

At the hearing on the state's motion in limine, mother testified to the facts
that follow. Sometime in September, October, or November of 2000, G spent a night
with great-grandmother in her home. When mother picked G up the next morning at
about 8:30, defendant was there. Mother testified that, sometime between a week and a
month later, G spent the night with mother's aunt. She complained to mother's aunt that
urinating was painful, and mother's aunt told mother about the complaint when she picked
G up the next day. Mother, who had herself been sexually abused as a child, became
concerned that G had been abused. Later that evening, mother took G to the grocery
store. As they walked from the parking lot to the store, using a tone she described as
"friendly" and "playful," she asked G, "[H]as anybody ever touched you in your private
parts?" G said, "Yes." Mother asked her, "Well, now who would do a thing like that?"
G responded, "My Uncle Bob," referring to defendant. Mother asked her where he had
touched her, and G pointed to her genital area. Mother then asked her where the touching
had happened, and G told her that it had happened at great-grandmother's home. Mother
decided to make a doctor's appointment to have G examined, and she asked her no further
questions.

According to mother's testimony, around the same time, some of G's
behavior changed. Mother testified that, in addition to complaining that it hurt to go to
the bathroom, "she didn't want anyone to wipe her, and she very seldom would wipe
herself." According to mother, G had not previously had any trouble wiping herself and
had been comfortable with allowing adults to do it for her. Mother testified that G also
became uncomfortable with changing her clothes with anyone around, which had not
previously been the case.

Mother also testified that G would no longer go to the bathroom by herself.
A day or two after G told mother that defendant had abused her, mother and G were at
great-grandmother's home when G had to use the bathroom. She would not go by herself,
so mother accompanied her. As they walked down the hall toward the bathroom, they
passed great-grandmother's guest bedroom. According to mother, G stopped and, without
any prompting, said, "This is where Uncle Bob was touching me. He had me on the bed."

At the hearing on the state's motion in limine, the state also called Dr.
Chervenak, a doctor at a child victim assessment center, as a witness. She testified that
she examined G on November 22, 2000. Chervenak testified that, after giving G a
physical examination, she excused mother and a nurse from the room and interviewed G
privately:

"My routine at that point is to remind them that I'm a doctor. And so I say,
'I'm a doctor and I see lots and lots of kids that have been hurt or touched in
ways they didn't like.' And I pause. And I say, 'Did that ever happen to
you?' And then I write down what they answer.

"Q: You said those things to her?

"A: Yes, I did.

"Q: What happened next?

"A: She said, 'Yes.' And I said to her, 'Can you tell me more about
that?' And when she's saying this part, she says yes, she's looking down at
the floor. And I said, 'Can you tell me more about that?' And she said,
'Uncle Bob.' And then she looked up and she looked right at me and she
said, 'He was naked. He did not have clothes on.' And she was very--she
had kind of a serious expression on her face when she said that. And I
asked her to tell me more about--I said, 'Can you tell me more about that?'
And she said, 'His knot was moving around a lot.'

"And I happened to have a--I have a lot of stuffed animals in the
room--and I had a stuffed bear sitting next to me, and I picked up the
stuffed bear, it's about this big, and I said, 'Can you point to the bear, where
is this knot? Where would the knot be on this bear?' And she pointed at the
crotch of the bear, where the genital area would be located. And I asked
[G], 'Where did Uncle Bob touch you?' And she said, 'In his house.' And
then I asked her, 'Where on your body did Uncle Bob touch you?' And she
looked at me and pointed to her genitalia and she said, 'He touched me right
here.' And she said that with--it was sort of emphatic."

Chervenak testified that G indicated that defendant had touched her genitalia with his
hands and with his penis. The doctor asked "if anything had touched her mouth * * *."
She testified that G told her, "Yes. I was choking real bad." When Chervenak asked G
what had touched her mouth, G replied, "His knot." According to Chervenak, G then
spontaneously said, "I told him to stop." She next testified that she asked G whether
defendant had said anything when that was happening and G "said he went, 'Okay, okay,
okay,' and she put her two hands up like this." G also told her that she was crying.

The trial court ruled that G's hearsay statements to mother were admissible
under OEC 803(18a)(b). At defendant's trial, as the state had anticipated, the court ruled
that G was unavailable as a witness because she was not competent to testify. Thus,
mother testified about the statements that G made at the grocery store and at great-grandmother's home. The state also called Chervenak to testify. Among other things, she
testified about the statements that G made to her. Defendant did not object to that
testimony.

At the close of trial, the jury found defendant guilty of both first-degree
sodomy and first-degree sexual abuse. The trial court imposed mandatory minimum
sentences pursuant to ORS 137.700. It sentenced defendant to 75 months in prison, with
10 years' post-prison supervision, on the sexual abuse conviction and 100 months in
prison, with 20 years' post-prison supervision, on the sodomy conviction.

On appeal, defendant makes three assignments of error. In the first, he
challenges the trial court's ruling on the state's motion in limine. He argues that the court
erred in concluding that the state had satisfied the requirements of OEC 803(18a)(b). In
particular, he contends (1) that the state did not establish that the time, content, and
circumstances of G's statements provided adequate indicia of reliability, (2) that her
statements did not bear sufficient indicia of reliability to satisfy constitutional concerns,
and (3) that the state did not offer sufficient corroborative evidence that the abuse
occurred or that defendant had an opportunity to engage in the abuse. We write only to
address defendant's argument concerning corroborative evidence of his opportunity to
engage in the abuse; we reject his other arguments without discussion.

OEC 803(18a)(b) provides, in part, that a statement made by a person
concerning an act of abuse is not excluded as hearsay under certain circumstances. If the
declarant was under 12 years of age when the statement was made and is unavailable to
testify at trial,

"the statement may be admitted in evidence only if the proponent
establishes that the time, content and circumstances of the statement
provide indicia of reliability, and in a criminal trial that there is
corroborative evidence of the act of abuse and of the alleged perpetrator's
opportunity to participate in the conduct and that the statement possesses
indicia of reliability as is constitutionally required to be admitted."

Id. Defendant argues that there is no evidence to support the trial court's finding that
defendant had the opportunity to commit the acts that G alleged. Specifically, he asserts
that there was no evidence that he was ever alone with G, much less evidence that he was
alone with her for such a time that he could commit the charged acts.

Defendant reads too much into the requirement for corroborative evidence
of the opportunity to participate in the alleged conduct. OEC 803(18a)(b) does not
require dispositive proof of such an opportunity; it requires only evidence of an
opportunity. In State v. Reed, 173 Or App 185, 194, 21 P3d 137 (2001), we explained
that corroborative evidence is independent evidence that tends to strengthen, confirm, or
make more certain the matter in support of which it is offered. Mother's testimony that
defendant was at great-grandmother's home when she picked G up supports and
strengthens the conclusion that defendant had an opportunity to abuse G. Evidence that
defendant was alone with G for a period of time would certainly constitute stronger
corroboration, but it is not required in order to satisfy OEC 803(18a)(b).

Because there is evidence in the record that supports the trial court's finding
that defendant had the opportunity to participate in the conduct for which he was
convicted, we are bound by that finding. See State v. Arellano, 149 Or App 86, 90, 941
P2d 1089 (1997), rev dismissed, 327 Or 555 (1998) (if evidence in the record supports a
trial court's findings on preliminary evidentiary matters, those findings are binding on
appeal); State v. Renly, 111 Or App 453, 468 n 12, 827 P2d 1345 (1992) ("Whether
evidence corroborates an act of sexual conduct and defendant's participation is a
preliminary question of fact, because it concerns the admissibility of evidence."). We
therefore reject defendant's first assignment of error.

In his second assignment of error, defendant argues that the trial court erred
in admitting Chervenak's testimony about G's statements. He does not challenge the
testimony on hearsay grounds; rather, he asserts that its admission violated his right under
the Confrontation Clause of the Sixth Amendment of the United States Constitution.
Defendant acknowledges that he did not object to the admission of the doctor's testimony
at trial, but he contends that we should review it as plain error. In response, the state
argues, among other things, that a reasonable dispute exists about whether G's statements
to Chervenak were "testimonial" under Crawford v. Washington, 541 US 36, 124 S Ct
1354, 158 L Ed 2d 177 (2004).

We agree with the state. We will review an unpreserved error of law only if
the question of law at issue is obvious--that is, not reasonably in dispute. Ailes v.
Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). In Crawford, the
Supreme Court held that the confrontation right guaranteed by the Sixth Amendment
requires that "testimonial" hearsay of an unavailable declarant is not admissible unless the
defendant has had a prior opportunity to cross-examine the declarant. 541 US at 68. The
Court declined to explain what "testimonial" means, beyond concluding that statements
elicited during police interrogation qualify. However, in Davis v. Washington, ___ US
___, 126 S Ct 2266, 165 L Ed 2d 224 (2006), the Court refined the distinction between
testimonial and nontestimonial hearsay. It explained that, where the circumstances show
that the primary purpose of the statements was not to assist the police in investigating a
crime, but rather to "enable police assistance to meet an ongoing emergency," the
statements are not testimonial. ___ US at ___, 126 S Ct at 2273.

In this case, a reasonable dispute exists as to whether G's statements were
made primarily for purposes of diagnosis and treatment rather than to assist in a police
investigation. There were no police officers present when Chervenak interviewed G, and
there is no indication in the record that Chervenak conducted the interview specifically
for use in later criminal proceedings or was otherwise acting as an agent or proxy for the
police.

This is not a case like State v. Pitt (A120428), 209 Or App 270, 147 P3d
940 (2006), in which we held that the trial court committed plain error in admitting into
evidence two interviews with child victims that were videotaped at a child advocacy
center. There, the record indicated that the center operated in partnership with the district
attorney's office, provided a number of services related to child abuse investigation,
housed a grand jury, and did not offer mental health treatment. It further indicated that
the interviews were videotaped by a police officer with the intent that the tapes would be
turned over to law enforcement or Child Protective Services. Id. at 273. We concluded
that the interviews were "conducted for the express purpose of furthering a police
investigation, with a police officer recording them and with the interviewer explicitly
attempting to solicit information from the children that would be useful for [the]
defendant's prosecution." Id. at 279. We therefore held that the children's videotaped
statements were "unquestionably testimonial, because their primary purpose was to
'establish or prove past events potentially relevant to later criminal prosecution.'" Id.
(quoting Davis, ___ US ___, 126 S Ct at 2273). See also
State v. Mack, 337 Or 586, 593,
101 P3d 349 (2004) (statements were testimonial given that they were made to a DHS
worker who took over a police interview when the interviewing officer was unable to
establish dialogue with the victim and who elicited statements so that the police could
videotape them for use in a criminal proceeding).

Because the record before us does not reflect facts such as those that were
established in Pitt, we cannot conclude that it is beyond dispute that G's statements to
Chervenak were testimonial. In short, G's statements to Chervenak are arguably akin to
the statements in Davis that were made primarily for a purpose other than to assist in a
police investigation. It follows that admission of the statements into evidence was not
plainly erroneous.